Republishing Obituaries: Is it Piracy?

Who owns the copyrights of obituaries? A recent court case in Canada may have far-reaching implications for genealogists in many countries. While the recent court case applies only to Canada, similar copyright issues exist in many other countries.

Thomson v. Afterlife Network Inc., 2019 FC 545, is a (Canadian) Federal Court decision in which the Court considers the existence of copyright in obituaries used in an e-commerce context.

The case involves a class action lawsuit claiming that posted obituaries and photographs posted in local funeral home web sites were copied and republished by the plaintiff and other class members without the permission of the true copyright holders. The suit then claims that the defendant infringed the copyright and the moral rights of the class members.

Afterlife (the defendant) operated a website that contained over a million obituaries in Canada and on which Afterlife reproduced obituaries and photos from the websites of Canadian funeral homes and newspapers and sold, for its own profit, flowers and virtual candles and hosted advertising for third party businesses. The Terms of Service on Afterlife’s website asserted that Afterlife owned the copyright in the website contents. The lawsuit claims that Afterlife has no legal rights to the copyrights.

You can read the details in an article by attorney Martin P.J. Kratz in the Lexology.com web site at: http://bit.ly/2V7csyw.

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28 Comments

Facts cannot be copyrighted. Most obituaries are nothing more than a short list of facts. (Long form obituaries written by professional writers could arguably transform a list of facts into a work of art.) Many (most?) newspapers charge grieving families money to print an obituary. Many obituaries (most?) are written by the grieving family members. Unless the person the obituary was about was a prominent citizen or a celebrity, newspapers will not spend the money to pay a reporter to write one. What we have, in most cases, are families doing the actual work of writing obituaries, paying to have them printed, and then being charged again if they wish to have them displayed long term on a memorial website, or being charged to access them through newspaper paywalls. Newspapers and funeral homes alike are doing their best to squeeze every last cent they can out of information that rightly belongs in the public domain.

OK, Damon, first of all I’d like to explain the difference between obituaries and death notices. Obituaries are usually over 200 words and are reserved for prominent people; while death notices are the small 2-3 line notices that you see grouped with others and are strictly a. To identify the dead so that people who knew them can recognize them and pay their respects and b. for times of services and the funeral home performing the services.

Your statement: ‘What we have, in most cases, are families doing the actual work of writing obituaries, paying to have them printed, and then being charged again if they wish to have them displayed long term on a memorial website, or being charged to access them through newspaper paywalls. Newspapers and funeral homes alike are doing their best to squeeze every last cent they can out of information that rightly belongs in the public domain.’ is misleading at best. Allow me to explain:
When you say that families are doing the actual work of writing the death notice – you’d be wrong in over 3/4 of the cases. The funeral director – most of the time, gets the personal information from the family AND THEN writes the notice and then submits it to the newspaper, so as to spare the family the burden of thinking what to write. Also, the funeral home MAKES NO MONEY from the death notices! They do this as a courtesy to the family. The Chicago Tribune used to perform this service for free – last I heard, they were charging $500 (I know, it’s outrageous) – but the funeral home gets zero. So when you come down to it – that death notice is actually the intellectual property of the funeral director – not the newspaper or the family. But i agree that it is public domain information.

Full disclosure: My oldest daughter and her husband; as well as my oldest son and his wife are funeral directors – all at different funeral homes. People don’t realize the charitable work these funeral homes do. From burying the unclaimed indigent from county morgues for free, to significantly lowering costs for people of little means. Funeral directors/funeral homes cannot regulate the cost of graves, head stones, cremation or caskets – they have nothing to do with those costs; which leaves embalming (which has a standard price), cosmetizing, casketing and services. Funeral Directors are not getting rich. They devote their energy, understanding and care to thousands of people every year whom they take under their care. They are on call 24/7 and are devoted – in many cases – to generations of the same families they serve. They work nights, weekends and holidays, to make sure that their families are served with compassion and dignity. I say this to educate you and others about the sacrifices they make and believe me, no one is getting rich LOL.

Leslie: you make some great points. It is not my intent to demean the hard work of the people who work in the funeral industry, nor that of hard working reporters at local newspapers all across the country. (I have friends that work in both fields.) Our local newspapers charge for all death notices and obituaries by the word. I am sure a great many of them are written by local funeral directors. I have rarely seen the author of an obituary given credit, let alone copyright. The entities claiming copyright are giant corporations, not the hard-working individuals who wrote the obituaries. These copyright claims are simply done to enrich the shareholders of these giant corporations, not to protect the rights of the authors who did all of the work.

Damon – the authors are not copyrighting the facts, they are copyrighting the obituary, which is being copied by Afterlife, who then compound their activity by claiming copyright themselves!! Whether or not the original publishers charged for the publication does not alter the fact that copyright exists (and is either owned by the author(s) or has been given or sold by the author(s) to the original publisher)

I am suddenly wondering if I should include a copyright statement in any obituary I write when I submit it to the newspaper? I’m not sure what I think about the idea of the obituary that I worked so hard on, which is far more than a short recitation of publicly available facts, should belong “in the public domain.” But despite my feelings about the matter, it seems to be so: just Google the name of a loved one.

I can only speak from personal experience. The few obituaries I know of involving family members were all written by the family. In most cases, the newspapers charged to have them submitted. The funeral home had nothing to do with this. If anyone held the copyright, it should be the family member who wrote the obituary.
I assume if a funeral home handles the obituary for the family, they would charge the family for this service.
Obituaries are more than just a collection of facts. They are usually a short biography of that person’s life.

My father died in the hospital after an extended illness. I was at his bedside all day long, two close friends (honorary family) showed up to visit in the afternoon and stayed with us to the end. Mr brother, who lived out of state, had spoken with Dad by phone early in the mornig and told him he was.coming to see him. He arrived about dinner time,with pizza. Dad looked up as he came througg the door and then passed away (As if he had been waiting for my brother to arrive before releasing his hold on life.) I am convinced the hospital staff had been eavesdropping on us over a monitor, because the moment someone said,”I think he’s gone,” the staff came rushing in and practically threw us out of the building so they could free up his bed. We didn’t even get the opportunity for a last caress and kiss before they wherled him away to the morgue.
All that night I was so overwhelmed with grief that I could not sleep. Finally, I got out of bed, I sat down at the computer and began to write about Dad. The next morning I took whatt I had written with me when my brother and I went to the funeral home to make the arrangements. The funeral director loved it, but we couldn’t afford the cost of having it printed in the paper. Instead we put a stack of copies on in the shapel for guests to take with them and the minister read it asthe eulogy during the service. I suppose I should add it to his profileon FamilySearch.org for future relatives to fimd, but I’m not yetready to put it in the public domain, yet.

The Fresno Bee, and other newspapers published by McClatchy, hold the copyright to everything it prints. My father wrote his own obit before he had heart surgery he did not survive in 1993. We paid the Bee to publish what he wrote, and then when findagrave came along I added the obit as printed in the Bee. A few weeks later was notified that if I did not remove this obit I would be sued. The paper said that the formatting belonged to them so using the obit as it appeared in print was a violation of their copyright.

It is piracy. Plain and simple. The Afterlife gang took from newspapers and funeral sites and, claimed them as their own and selling access to them. Very different from GenealogyBank where the owner negotiate with newspapers and funeral homes and do NOT claim copyright to them.

To say that the funeral director writes the obituary and makes no money off of it is not strictly true. While there may be no line item in the bill, the writing of the obituary is included in the cost of the funeral/burial service. The funeral director may gather the information but in many cases the actual obit is written by some staff member, reviewed and approved by the family and then submitted to one or more newspapers each of which usually charges a fee based on the circulation of the paper. A small town paper may charge less than $100 but the same obituary in a paper with a larger circulation, may cost a $1000 or more. In more recent times most funeral homes have a webpage and also post the obituary there. So the obituary ends up being posted to as many as 3 or 4 different places.

At other times a person may have pre-planed their funeral service and may have already written the majority of their obituary leaving only the final details to be entered at the time of death.

So who “Owns” the copyright to an obituary could be open to discussion.

Finally there is the question of “Fair Use” of the copyrighted material. In the case of Afterlife Inc., it could be easily said that their use of copyrighted material far exceeds fair use and would be worthwhile for the copyright owners to go after them but for the owners to go after every family researcher who may add the obituary to their family tree would be expensive, pointless and nearly impossible.

Richard, you could not be more wrong – I hate to contradict you, as I hate to be contradicted as well. You said:
‘To say that the funeral director writes the obituary and makes no money off of it is not strictly true. While there may be no line item in the bill, the writing of the obituary is included in the cost of the funeral/burial service. The funeral director may gather the information but in many cases the actual obit is written by some staff member,..’
There are more and more people that are opting for no death notice (please stop calling it an obituary – its not). So do you think in that case the funeral home should give a rebate for not taking 5 minutes to fill in family names an hit “enter” to transmit it to the newspaper? Also, it is insulting to say that the death notice is written by ‘some “staff” member. That’s just not the way it works. A Funeral Director serves the family in every respect.

Times have changed. When my parents died in the late 80s, early 90s, we submitted the information to the funeral home and they wrote the obituary for the paper. The cost was part of the total funeral service package. When my brother passed away in 2011, we were told to submit it directly to the paper. They charged by the word. Now who do you think is more wordy – the funeral home who does this everyday or a grieving family member? Of course newspapers are in financial binds today and this is one way to increase, even slightly, their bottom line. As far as copywrite ownership, I would assume it belongs to the author of the obituary, whether family member or funeral home, but not to some 3rd party hoping for financial gain.

I believe the copyright remains with the original author, who then submits it to whichever newspaper or website he or she chooses to have publish it under under the terms and conditions of the purchase order or the website’s terms of service, forming the contract between the author and the publisher (which usually contain a licensing agreement). You have to read the T&C or TOS.

I know one family that paid $700 to have the obit in the newspaper. I guess because most people do not subscribe to newspapers anymore and most of it is put online, the newspapers are not able to sell enough advertising to support the cost of the newspaper. So obituaries have been a substitute for some of the loss of advertising.

@Leslie – There may very well be regional differences. First of all, my siblings and I have written both our parents’ obituaries, and paid to publish them. They were definitely more than death notices, they were obituaries. Yes, we paid to publish them, because my parents were not prominent individuals. Interestingly, though, when we tried to make arrangements to have my fathers obituary published in his hometown paper in another state, the paper would only accept it from the funeral home. The funeral home was flummoxed, because they do not do obituaries (this was in 2007 – I think they have them on their website now, like many other funeral homes). Also, among my friends who have lost their parents, the surviving children have all written their parents’ obituaries, not the funeral home. I am in California, my dad’s hometown was in Texas.
On a separate note, FindAGrave (before it was bought by Ancestry.com), had – in its Terms and Conditions – a notice that obituaries were copyright by the person who had written it, and were not to be republished verbatim on the site because of that. I have not read the T&C recently, so I do not know what it says now.

mjs – i was referring to a death notice – which are FACTS. For a death notice, the only thing a Funeral Director needs are the names of family members. The Funeral home already has all of the other information – they don’t need to get ANYTHING else from the family. Death notices are not biographies. They are factual statements about wake, burial, time of service, location, spouse, children and (not so much anymore) grandchildren. It sounds like you’ve had a bad experience with funeral service. I’m sorry you had to go through that, the overwhelming majority of directors are there to serve, with compassion, the decedent as well as the family.

I think when you release an obituary you composed, over to a local paper, the paper owns the copyright, even though you paid them to do it. I think releasing the obituary releases the copyright entirely. But, I’m not sure if there is caselaw to back it up in the USA…

It’s a contractual relationship, but the paper (or web publisher) usually draws the contract in its own favor on a “take it or leave it” basis, giving itself the broadest possible terms so that it can reuse or resell the entire page at will, either on its own website, or for use by pay sites such as Newspapers.com, FindMyPast, Ancestry, etc., without royalties having to be paid to all the authors of each individual obituary.

Hopefully the ruling will be interpreted narrowly to the very commercialized use by Afterlife and not extended to uses such as on Find-a-Grave pages or FamilySearch trees or similar genealogy-related uses. Obituaries can be invaluable to future family historians so it would be tragic to see them hidden away, published for a year or so on the newspaper’s Website and then lost forever.

Finding my 2nd great-grandfather’s obituary on Find-a-Grave was a real treasure. I’d been looking for it for several years, every time more newspapers from the area were digitized. Who knew they would use Carl August Johnson, his real name, rather than Charley or Charles that he always used?

I think a lot of people that commented are not realizing the difference between a factual abstract, which is a three line death notice; with an actual article (story) that is an obituary. One last thought… I do not believe that you can copyright someones death date, children, grandchildren,etc. These are facts about someones life and I believe there is a president in the United States that you cannot copyright these facts. Now if you want to write an OBITUARY, as opposed to a DEATH NOTICE (just the facts) where there is a story – so to speak – that may be a different matter. We may just be doomed to have to wait for the copyright to run out on Aunt Sophie’s OBITUARY – but we may always be able to use her Death Notice (because you cannot copyright someones name or a date).

Let’s all play it smart. Write your own obit. Put in it what you feel is important regarding yourself and what you have accomplished or want known. I had written my in-laws obit and have one for mom when she goes. Just fill in the date & place. I also have one started for myself as I have had a busy life and am proud of my activities and accomplishments. If family members want to add something ok, just the facts or a bit of biography. put it in a safe place and let family know it’s there. If you do a prearrangment funeral put a copy with the funeral home. Each newspaper has their own exorbitant fee. Some not so bad.

He has been involved in genealogy for more than 35 years. He
has worked in the computer industry for more than 50 years in hardware,
software, and managerial positions. By the early 1970s, Dick was already
using a mainframe computer to enter his family data on punch cards. He
built his first home computer in 1980.